[author: L. Javan Grant]
You are the president of Company XYZ. You just finished a long telephone conversation with your outside counsel who is representing XYZ in significant product liability litigation. During your call outside counsel requests dates for the other litigants to inspect the alleged defective product. There is just one problem - one of your employees unintentionally destroyed the defective product. You begin to panic. “Does this open the door for another lawsuit?” “Will the court punish us, and if so, how severe will the punishment be?” “How on earth could this have happened?”
You have officially entered the realm of…spoliation of evidence. Spoliation of evidence a/k/a the destruction, alternation or concealment of evidence, typically occurs when a product, vehicle or other tangible item that has allegedly injured someone has been subsequently discarded or altered to the point where the item is of no evidentiary use or value. Unfortunately, spoliation of evidence occurs quite frequently and can result in significant consequences including sanctions issued by the Court, or the use of adverse presumptions or inferences. So, how does a company - a company that employs hundreds of employees - protect itself. While there is no absolute way to prevent the above from ever happening, following the simple steps below can act to significantly minimize your risk.
First, have a plan. The company should have one person designated as the “go to guy” when a product has injured someone. This individual should be the person in charge of overseeing the preservation of the product/item and in working with the company’s general or outside counsel in formulating company guidelines/procedures for the preservation of the product/item.
Second, if the company has received a preservation letter it should immediately preserve the product/item and not make any alterations or repairs.
Third, train your employees on the company policies and procedures regarding the preservation of evidence and the importance of preserving potential evidence.
Finally, contact your general counsel or outside counsel for immediate advice.
Following the above simple steps should help minimize the risk of your employees discarding or altering key evidence and in turn, will save the company from Court imposed sanctions or adverse evidentiary inferences.